Citation Nr: 0210865
Decision Date: 08/29/02 Archive Date: 09/05/02
DOCKET NO. 99-22 683 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Denver,
Colorado
THE ISSUE
Entitlement to service connection for vertigo as secondary to
service-connected hearing loss and tinnitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Marisa Kim, Associate Counsel
INTRODUCTION
The veteran had active military service from February 1955 to
January 1957.
This appeal is before the Board of Veterans' Appeals (Board)
from November 1997 and June 1999 rating decisions from the
Washington, District of Columbia, Department of Veterans
Affairs (VA) Regional Office (RO) that denied entitlement to
service connection for vertigo. The veteran now resides in
the jurisdiction of the Denver, Colorado VARO.
In September 2001, the Board remanded the case to: 1) obtain
the veteran's reserve medical records; 2) obtain a VA
examination and medical opinion; 3) inform the veteran of the
provisions of The Veterans Claims Assistance Act of 2000 and
request additional evidence from the veteran; and 4) schedule
a travel board hearing for the veteran.
The RO successfully completed three out of four requests made
by the September 2001 Board remand. In April 2002, the
National Personnel Records Center confirmed that the
veteran's reserve service medical records, if any had ever
existed, had been destroyed in the 1973 fire at the Center.
The RO scheduled and provided written notice to the veteran
of VA examinations on three separates dates in June 2002.
After missing all three examinations, the veteran filed a
June 2002 statement that declined the opportunity to undergo
any new VA examination. The RO's March 2002 letter informed
the veteran of the provisions of The Veterans Claims
Assistance Act of 2000 and of the types of evidence needed to
support his claim, and the veteran's March 2002 statement
asserted that he had no additional records to submit.
REMAND
This case must be remanded because the VA still has a duty to
schedule a travel board hearing for the veteran. The
veteran's June 2001 note specifically requested a personal
hearing before the Board at the Denver, Colorado, VARO, but a
September 2001 video hearing was inadvertently scheduled for
the veteran instead. Since the veteran did not waive his
right to a travel board hearing, the fact that a video
hearing was scheduled does not satisfy his request for a
hearing. Accordingly, he should be scheduled for a travel
board hearing at the RO.
In order to afford the veteran full due process, the case
will be REMANDED for the following action:
The RO should schedule a travel board
hearing for the veteran. The RO, by
letter, should inform the veteran and his
representative, if any, of the date,
time, and location of the travel board
hearing. All efforts made should be
documented and all correspondence
received should be associated with the
veteran's claims folder.
Thereafter, the case should be returned to the Board for
final appellate review, if in order. The Board intimates no
opinion as to the ultimate outcome of the veteran's claim.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the RO. Kutscherousky v. West, 12 Vet. App. 369, 372-73
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2001) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
V. L. Jordan
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2001), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2001).